This is an appeal from a judgment entered on the verdict of a jury in an action brought by the plaintiff to recover a part payment made on account of the purchase price of certain premises. It appeared that a memorandum of sale was signed by the parties at the time said payment was made. As the defendant expressed it, said memorandum was intended as a “ binder.” It did not contain all of the terms of the agreement, and it shows upon its face that the parties had agreed to express their contract in a more formal writing at a subsequent time when another payment was to be made. On the day fixed for executing the formal contract the parties met and, according to the plaintiff’s evidence, the defendant *275refused to execute it unless it contained a provision for a restrictive covenant, and unless it provided that the mortgage subject to which the property was sold was to run about four and a half years instead of about five years, as the original memorandum had provided ; whereupon the plaintiff tendered to the defendant the_ payment which was to be made on that day, and demanded a contract in accordance with the terms of the original agreement, which the defendant refused to give. The defendant’s version of that transaction was that the contract prepared by him was changed to meet the plaintiff’s objections, and that the latter then refused to execute the contract, assigning as a reason therefor the provision in it that the premises should be conveyed subject to an unexpired lease of a portion of the premises. There was nothing in the original memorandum in reference to said lease, but the undisputed evidence of the defendant tends to show that when said memorandum was signed the plaintiff was informed of said lease and of the time which it had to run, and consented to take the premises subject thereto.
In so far as the verdict rests upon disputed questions of fact it cannot be said to be against the weight of the evidence; but the defendant insists, upon the authority of Caren v. Liebovitz (113 App. Div. 674), that as the plaintiff had a writing which satisfied the Statute of Frauds* it could bring an action for specific performance of the contract evidenced thereby, but cannot recover the payment made even though the defendant refused to execute the formal contract contemplated by the parties. That case is distinguishable from this by the fact that the signed memorandum in this case showed upon its face that a more formal writing was to be prepared, thus indicating, what is undisputed, that the memorandum did not express the entire agreement. It was silent as to the lease subject to which the premises were to be conveyed, and as to other terms expressed in the writing prepared by the defendant which were assumed to have been agreed upon. The signed memorandum was not the contract, even if it was sufficient on its face to satisfy a rule of evidence; it did not express or purport to express the entire contract. The parties agreed that this should be put in writing on *276December 1, 1905. The jury has found that the defendant refused to do that and the plaintiff should have the right to treat such refusal as a breach, to rescind and to recover'the payment made. The question is not whether there was a good consideration for such payment, or whether it has failed, but whether the refusal of one party to perform according to the terms of the agreement gives the other the right of election between performance and rescission.
The defendant’s breach was unequivocal. It begs the question to say that a writing expressing the entire contract was either useless or immaterial. The parties deemed such a writing important, and the refusal of the defendant to do what he agreed to do in the way of executing such contract was as unequivocal as though he had declared that he would not execute a deed which did not contain the provisions that he desired to incorporate into the contract. Such a declaration would have excused tender and demand by the plaintiff on the deed day. Having refused to perform according to the terms of the contract (and the contract must not be confused with said signed memorandum), the defendant cannot now be heard to say that he would have given a deed had a tender and demand been made on the deed day.
The defendant’s position may be thus stated : The plaintiff has a signed memorandum on its face sufficient to satisfy the Statute of Frauds, but not expressing the entire contract; the refusal of the defendant to put the contract in writing was immaterial, for the plaintiff could bring an action to compel specific performance of the contract so”far as it was evidenced by the signed memorandum; in that action the plaintiff could not get the title described by said memorandum, for the defendant can only convey subject to a lease, but that is immaterial, for the plaintiff is willing to take subject to the lease. In other words, the defendant would limit the plaintiff to the signed memorandum, while asserting his own right to stand on the actual contract, which he agreed, but refused, to put in writing. I do not think a party should be permitted to assume such an attitude.
The judgment and order should be affirmed.
Woodward, Hooker and Rich, JJ., concurred; Gaynor, J., read for reversal.
See Real Prop. Law (Laws of 1896, chap. 547), §§ 207, 224 —[Ref.